Opinion
14-22-00403-CV
11-30-2023
ROBERT W. PITCHER, Appellant v. KOLA OLAKUNLE JOSEPH, Appellee
On Appeal from the County Civil Court at Law No. 3 Harris County, Texas Trial Court Cause No. 1165350
Panel consists of Chief Justice Christopher and Justices Zimmerer and Poissant.
MEMORANDUM OPINION
Margaret "Meg" Poissant Justice
Appellant Robert W. Pitcher ("Pitcher") appeals from a summary judgment granted in favor of appellee Kola Olakunle Joseph ("Joseph") in an equitable bill of review concerning a prior default judgment against Pitcher. In four issues, Pitcher argues: the first judgment against him is void because (1) it is against the wrong person, (2) is founded upon an unpled or non-existent cause of action, and (3) proof adduced at the default judgment hearing fails to establish liquidated damages as required by law; and (4) the default judgment must be set aside because the relevant purchase agreement between Pitcher and Joseph required submission of disputes to binding arbitration. We affirm.
I. Background
On February 19, 2021, Pitcher filed a petition for equitable bill of review seeking to set aside a default judgment entered in favor of Joseph on November 25, 2020. Pitcher alleged that he is a member of Deals on Wheels South LLC ("Deals on Wheels"), a Florida limited liability company; that Joseph purchased a vehicle "as is" from Deals on Wheels; that Joseph filed his lawsuit against the wrong party by filing suit against Pitcher and not Deals on Wheels; that Pitcher's failure to file an answer "was not the product of reckless disregard or conscious indifference" but a result of "accident, mistake, or excusable neglect"; and that Pitcher has meritorious defenses to Joseph's claims. Pitcher attached an affidavit to his petition, stating that he did "not recall receiving a citation in this case" and that he did "not know what happened to it and I cannot explain it." Pitcher further stated that he did not receive notice of the entry of the default judgment against him.
Pitcher is the sole member of Deals on Wheels South, LLC, which operates under the name Kelly's Cars.
Joseph filed a traditional motion for summary judgment, arguing that Pitcher was not prevented from pleading or proving his defenses in the default-judgment proceeding due to any actions by Joseph or any official mistake. Joseph further argued that Pitcher was negligent or mistaken in failing to answer the lawsuit. Joseph attached the process server's affidavit, Pitcher's responses to requests for admissions and to interrogatories, a portion of Pitcher's deposition, a notice of the default judgment, and Pitcher's affidavit.
Pitcher filed a response to Joseph's summary-judgment motion, arguing that a judgment in Texas must be based upon a cognizable cause of action, that a plaintiff must prove unliquidated damages, and that the bill of review standard required Pitcher to raise a fact issue that he was not intentionally or consciously indifferent when he failed to respond to Joseph's lawsuit, not a fact issue as to whether he had been negligent in failing to answer.
On March 28, 2022, the trial court granted Joseph's motion for summary judgment. This appeal followed.
II. Discussion
In four issues, Pitcher argues the first judgment against him is void because (1) it is against the wrong person, (2) is founded upon an unpled or non-existent cause of action, and (3) proof adduced at the default judgment hearing fails to establish liquidated damages as required by law; and (4) the default judgment must be set aside because the relevant purchase agreement between Pitcher and Joseph required submission of disputes to binding arbitration.
A. Standard of Review
While abuse of discretion is the proper review standard for the ruling on a bill of review, Joseph v. Jack, 624 S.W.3d 1, 6 (Tex. App.-Houston [1st Dist.] 2021, no pet.) Vandervlist v. Samara Portfolio Mgmt, LLC, No. 14-16-00044-CV, 2017 WL 3194062, at * 5 (Tex. App.-Houston [14th Dist.] July 27, 2017, pet. denied) (mem. op.), this case was appealed from a summary judgment. Thus, the appropriate standard in this case is that for the review of a summary judgment. See Clarendon Nat'l Ins. v. Thompson, 199 S.W.3d 482, 487 (Tex. App.-Houston [1st Dist.] 2006, no pet.).We review an order granting summary judgment de novo. Henkel v. Norman, 441 S.W.3d 249, 250 (Tex. 2014) (per curiam); Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013).
We note that Pitcher's brief does not include a standard of review for the challenges he asserts on appeal, nor does he provide any analysis or substantive discussion on how he raised a fact issue precluding summary judgment. See Tex. R. App. P. 38.1(i) ("The brief must contain a clear and concise argument for the contentions made, with appropriate citations to authority and to the record."); see also Tex. R. Civ. P. 166a(c). We choose to address the trial court's grant of Joseph's motion for summary judgment out of an abundance of caution and in our sole discretion.
The movant for a traditional summary judgment must establish that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. Tex.R.Civ.P. 166a(c); KPMG Peat Marwick v. Harrison Cnty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). In conducting our review, we view the evidence in the light most favorable to the nonmovant and make all reasonable inferences and resolve all doubts in the nonmovant's favor. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999). A defendant who moves for traditional summary judgment must either disprove at least one element of each of the plaintiff's causes of action or plead and conclusively establish each essential element of any affirmative defense, thereby rebutting plaintiff's causes of action. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995) (per curiam).
If the movant can show it is entitled to judgment as a matter of law, then the burden shifts to the nonmovant to present evidence raising a fact issue to defeat the motion for summary judgment. Haight v. Savoy Apartments, 814 S.W.2d 849, 851 (Tex. App.-Houston [1st Dist.] 1991, writ denied). If a trial court's order granting summary judgment does not specify the grounds for the ruling, then the appellant bears the burden of negating all possible grounds for the trial court's ruling. Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995).
B. Applicable Law
"A bill of review is an equitable proceeding to set aside a judgment that is not void on the face of the record but is no longer appealable or subject to a motion for new trial." King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003) (citing Baker v. Goldsmith, 582 S.W.2d 404, 406 (Tex. 1979)). "Courts narrowly construe the grounds on which a plaintiff may obtain a bill of review due to Texas's fundamental public policy favoring the finality of judgments." Mabon Ltd. v. Afri-Carib Enters., Inc., 369 S.W.3d 809, 812 (Tex. 2012); Alexander v. Hagedorn, 226 S.W.2d 996, 998 (Tex. 1950).
To obtain a bill of review, "a petitioner must generally plead and prove: (1) a meritorious claim or defense to the judgment; (2) which the petitioner was prevented from making by official mistake or by the opposing party's fraud, accident, or wrongful act; (3) unmixed with any fault or negligence on the petitioner's own part." Valdez v. Hollenbeck, 465 S.W.3d 217, 226 (Tex. 2015); see Mabon Ltd., 369 S.W.3d at 812; Caldwell v. Barnes, 154 S.W.3d 93, 96 (Tex. 2004) (per curiam); see also Wembley Inv. Co. v. Herrera, 11 S.W.3d 924, 927 (Tex. 1999) (per curiam) ("Generally, bill of review relief is available only if a party has exercised due diligence in pursuing all adequate legal remedies against a former judgment and, through no fault of its own, has been prevented from making a meritorious claim or defense by the fraud, accident, or wrongful act of the opposing party."). Thus, the petitioner must show that the default judgment was not rendered because of his own fault or negligence. Mabon Ltd., 369 S.W.3d at 812; Caldwell, 154 S.W.3d at 96; see, e.g., Campus Invs. v. Cullever, 144 S.W.3d 464, 466 (Tex. 2004) (concluding that denial of bill of review was proper even though defendant did not receive service of process because the defendant was negligent in not updating the registered agent's address with the Secretary of State and defendant was properly served through the Secretary of State). A defendant who was not served with process or who did not receive notice cannot be at fault or negligent in allowing a default judgment to be rendered. Caldwell, 154 S.W.3d at 97.
C. Analysis
We first address Pitcher's argument that the default judgment is void based on lack of jurisdiction because Joseph filed suit against Pitcher individually and not Deals on Wheels. However, filing suit against the incorrect defendant does not prevent the exercise of jurisdiction over a defendant who has received service of process of the plaintiff's petition. See Caldwell, 154 S.W.3d at 97; Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 200 (Tex. 1985) (per curiam). Here, the record shows that Pitcher was served with a copy of the petition, and he does not contest that service occurred or advance any other argument negating the trial court's jurisdiction apart from arguing that the wrong party was sued. Accordingly, we reject Pitcher's argument. See id.; see also PNS Stores, Inc., 379 S.W.3d at 274 ("Texas courts of appeals have correctly distinguished between technical defects in service and a complete failure or lack of service, concluding that only the latter violates due process.").
Pitcher only alleges that he does not "recall" being served.
A judgment entered by a trial court without personal jurisdiction over the defendant is void. See PNS Stores, Inc. v. Rivera, 379 S.W.3d 267, 273-74 (Tex. 2012). Pitcher raises no other argument disputing the trial court's personal jurisdiction over him.
To the extent that Pitcher argues he had meritorious defenses to Joseph's lawsuit, Pitcher was required to raise a fact issue that the default judgment was unmixed with his own fault or negligence. See Mabon Ltd., 369 S.W.3d at 812. However, Pitcher stated in his affidavit that his failure to answer Joseph's lawsuit was the product of his "accident, mistake, or excusable neglect." This evidence is undisputed. Accordingly, we conclude that the trial court did not err when it granted Joseph's motion for summary judgment. See Tex. R. Civ. P. 166a(c).
Pitcher argues that the standard applicable to his bill of review was articulated by the Supreme Court of Texas in Craddock v. Sunshine Bus Lines, Inc., which holds that a default judgment should be set aside and a new trial granted if (1) the failure to answer was not intentional or the result of conscious indifference, but was due to a mistake or accident; (2) the defendant presents a meritorious defense; and (3) granting a new trial would not result in delay or otherwise injure the plaintiff. 133 S.W.2d 124, 126 (Tex. 1939). However, the Craddock standard applies when a motion for new trial has been filed in the original case after a default judgment has been granted. See Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 925 (Tex. 2009) (per curiam); In re R.R., 209 S.W.3d 112, 114-115 (Tex. 2006) (per curiam).
Here, Pitcher did not file a motion for new trial in the original case but instead challenges the trial court's default judgment by a bill of review in a separate proceeding. See Mabon Ltd., 369 S.W.3d at 812 ("A bill of review is an equitable proceeding, brought by a party to set aside a prior judgment that is no longer subject to challenge by a motion for new trial or direct appeal."). Thus, Pitcher was required to raise a fact issue as to whether the default judgment was rendered unmixed with any fault or negligence on his part. See Mabon Ltd., 369 S.W.3d at 812; see also Caldwell, 154 S.W.3d at 96 ("Bill of review plaintiffs alleging that they were not served . . . must still prove . . . that the judgment was rendered unmixed with any fault or negligence of his own."). As noted above, the evidence in the summary-judgment record is undisputed that Pitcher's failure to answer Joseph's lawsuit was the product of his "accident, mistake, or excusable neglect."
We overrule Pitcher's issues on appeal.
III. Conclusion
We affirm the trial court's judgment.